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Toronto Forensic kinesiology still seeking better recognition in courts

Scales of justice.

CHRISTOPHE ENA/AP

Seated in the prisoner's box in green jailhouse clothes and ankle shackles, hair tied back in a neat braid, Nandini Jha, 35, looked scared out of her mind.

Perhaps with good reason. She had emigrated from India less than two years earlier with no job skills and few friends, speaking little English. Now she was in custody awaiting a bail hearing, accused of fatally injuring her three-year-old daughter, Niyati, in a beating.

But that's not what happened, Ms. Jha maintains.

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Nine months elapsed between Niyati's death and the murder charge, laid in June of last year, and Ms. Jha has always maintained the head wounds were incurred when the toddler climbed up a bookcase to grab some cookies from the top shelf and brought the bookcase crashing down on herself.

"The Crown's case is entirely circumstantial, no one saw my client commit any violence whatsoever, so the question remains, how did this happen?" her lawyer, Dirk Derstine, said outside the courtroom, where the customary publication ban on evidence is in place.

"Certainly, both parents have advanced the explanation that a falling bookshelf caused these injuries, and clearly a falling bookshelf can cause significant injuries to a child. So it may well be that evidence will be called to show that a falling bookshelf, or similar object falling, could have harmed the child."

For a jury to accept that possibility, it would have to scrutinize the manner in which Niyati might have clambered up the bookshelf and caused it to topple.

How people fall, how they land and what injuries they incur is the stuff of a field of expertise encompassed by kinesiology, the study of human movement. Numerous universities offer kinesiology postgraduate and doctoral degrees, paving the way for jobs in research, the fitness industry and other fields.

In court, however, its veracity as a science is often called into doubt, says retired Dalhousie University kinesiology professor Larry Holt, who has provided evidence in several criminal cases, and played a key role in the 2002 reversal of the murder conviction of Nova Scotian Clayton Johnson.

Mr. Holt spent the bulk of his career studying injuries sustained by athletes, particularly those resulting from falls, and has co-authored two authoritative papers about forensic kinesiology.

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"When a person from the field of kinesiology wants to be involved in a court case, there is no established credibility accepted by the legal system," he says.

If kinesiology gets short shrift in court and elsewhere, that may be about to change in Ontario, which in April became the first place in the world to regulate it as a health profession.

More than 2,600 practitioners belong to the Ontario Kinesiology Association, and as of April 1, after five years of consultation, they became regulated, as accountable to the public as other recognized medical experts.

"In recognizing this as a health profession, the Ontario government has really stepped up to the plate," says Brenda Kritzer, registrar of the transitional council of the College of Kinesiologists of Ontario, which will become a permanent body.

"Kinesiologists are active across the full spectrum of health care, from prevention of illness and injury right through rehabilitation."

The new respect is long overdue, Mr. Holt says, citing how his testimony as a kinesiologist saved Mr. Johnson from a wrongful conviction.

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Prosecutors concluded that Mr. Johnson's wife, Janice, was beaten to death, rejecting the defendant's claim that she fell down some stairs.

Mr. Holt, however, helped persuade the provincial appeal court that a fall was the most likely explanation for her head injuries, even though they were at the back of her head rather than the front.

"What we did was reconstruct the fact that the stairs themselves were such that you can't go down facing directly forward, you have to angle yourself," he said. "And that would cause a rotation of the body."

The complexities of human movement constantly arise during criminal trials.

After Toronto teenager Jane Creba was shot dead on a crowded street during Boxing Day sales in 2005, it was the Crown's position during one of the subsequent murder trials that the trajectory of the fatal bullet suggested she was crouching when she was hit in the back.

And when former York Regional Police officer Robert Wiche unsuccessfully sued Ontario's Special Investigations Unit in 2001 over a manslaughter charge it laid against him, a kinesiologist specializing in involuntary muscle contractions testified at trial that Mr. Wiche fired his handgun accidentally after being knocked off balance.

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Forensic kinesiology blends biomechanics, anatomy, physiology, pathology, clinical medicine and what could be called environmental factors.

And as with any other type of specialized knowledge, those who give what is termed "opinion evidence" in criminal proceedings – an exception to the usual testimony of witnesses describing what they saw or heard – must be deemed an "expert witness."

"It is certainly open to a trial judge to consider the fact that kinesiology is a field of graduate study in many well-respected universities in Ontario and other provinces, to assess whether it is an area of study capable of supporting a reliable conclusion," said former Crown attorney Graeme Cameron, now with the Toronto law firm Lindsay Cameron Proulx.

But that does not always happen. Mr. Holt has been both accepted and rejected as an expert witness.

Back in Brampton, Ms. Jha's bail application came to an end after a day's worth of submissions.

Through a Hindi interpreter, she was advised that the judge would reserve his decision.

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Tears welled in her eyes as defence co-counsel Sharon Jeethan gave her a big hug. Then she was led away by stone-faced court security staff.

Ten days later, she was granted bail, with a string of conditions attached. She can have no idea what the future holds. Nor can her lawyers.

Her preliminary hearing gets under way June 11.

But one issue is in plain view.

"The precise mechanism of death will be an active question for the jury," Mr. Derstine said. All will depend on "whether or not the Crown can prove that these injuries happened through human intervention."

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